State of Maharashtra v. Ibrahim Rajakhan Nadat — 1976 DIGILAW 148 (BOM)

JUDGMENT - G.S. GANDHI, J.:---These four matters arise out of two judgments and order passed by the learned Judicial Magistrate, First Class, Court No. 2, Kolhapur dated 31st December, 1973 in Criminal Case No. 1244 and 1245 of 1973. All these appeals are disposed of by this single judgment. The learned Judicial Magistrate, First Class, disposing of the complaint filed by one Parulekar, the Food Inspector of the Kolhapur Municipal Corporation, against the accused Ibrahim Rajekhan Nadat, has, after framing the charge against the accused and after the evidence having been led before him, disposed of the two complaints, one in respect of Suttar Feni and another in respect of Badami Halva under the Prevention of Food Adulteration Act, 1954, by coming to the conclusion that there was non-compliance of section 20 of the said Act, which resulted into the trial without jurisdiction and as such he could not decide the case. In his opinion, he had no other alternative, but to quash the proceeding and to release the accused. He has further held that the prosecution against the accused was without jurisdiction as there was no proper sanction for the complaint filed before him. He has, however, made it clear in his judgment that as he had no jurisdiction, he could not decide the matter and he was not deciding the matter on merits. But, while passing the order, he has stated that the proceedings against the accused are quashed and the accused was released. His bail bond stood cancelled and the accused was set at liberty. Mr. Deshmukh appearing for the State and Mr. Heble appearing for the complainant in Criminal Appeals Nos. 775 and 776 of 1973 submitted that the judgment and order is erroneous and that the learned Magistrate having once framed the charge against the accused and allowed the evidence to be led and having heard the whole matter had no jurisdiction to quash the proceedings and release the accused. Briefly stated the facts are that the accused Ibrahim Rajekhan Nadat on 18th July, 1972 at about 10.30 a.m. was found in possession of Badami Halwa, which was found to be adulterated and which was kept for sale and thereby he committed the offence under section 2(1)(j) read with section 7(i) and punishable under section 16(1) of the said Act. Briefly stated the facts are that the accused Ibrahim Rajekhan Nadat on 18th July, 1972 at about 10.30 a.m. was found in possession of Badami Halwa, which was found to be adulterated and which was kept for sale and thereby he committed the offence under section 2(1)(j) read with section 7(i) and punishable under section 16(1) of the said Act. Parulekar, the complainant was appointed as a Food Inspector by the Municipal Council, which was subsequently converted into the Municipal Corporation. The accused was running a shop of eatables opposite the S.T. Stand of Kolhapur by name "Bombay Farsana Kendra". The complainant along with the witnesses and the Assistant Health Officer Shri Nageshkar visited the shop of the accused on 18th July, 1972 at about 10.30 a.m. in order to take samples of Badami Halwa and Suttar Feni. The complainant accordingly took the samples of Suttar Feni and Badami Halwa of 450 gms. and 600 gms. respectively and gave the necessary price therefore to the accused and he obtained the receipt for the same. The complainant thereafter issued notice to the accused about his intention to send the samples to the Public Analyst for analysis. The complainant thereafter divided these samples into three bottles equally and then sealed and labelled them as per the procedure under the said Act. The formalities under the Act were carried and the sample of each food article was sent to the Public Analyst. Parulekar received the report of the Public Analyst which was at Ex. 14 by which it was found that sample at serial No. 52 of Suttar Feni contained a non-permitted coal tar viz., Orange II and as such adulterated under section 2(i)(j) of the Act. According to the prosecution, the complainant then moved the Kolhapur Municipal Council to grant sanction to prosecute the accused. It was the prosecution case that the Kolhapur Municipal Council on 13th December, 1972 gave the necessary consent to file the prosecution against the accused, by its Resolution No. 662 dated 13th December, 1972. A copy of the said resolution is at (Ex. 16), Parulekar then filed the complaint against the accused for breach of the provisions of the said Act. The defence of the accused was the he had received the material just before the incident and that he did not know what was the quality of the said food articles. A copy of the said resolution is at (Ex. 16), Parulekar then filed the complaint against the accused for breach of the provisions of the said Act. The defence of the accused was the he had received the material just before the incident and that he did not know what was the quality of the said food articles. It was the defence of the accused that he had purchased it from Mahim Halva Bhandar, Pune. The accused further stated that he was not ready and willing to sell the food products and wanted the complainant to note down his contentions in the Panchanama. The complaint which appears in the Paper Book at page 11 was filed on 4th March, 1973. In the said complaint, the complainant Parulekar mentioned the fact that he was appointed as a Food Inspector by the then Kolhapur Municipal Council as per section 9 of the said Act and after narrating the facts as to how Suttar Feni was found in the shop of the accused and after taking the sample, he sent the sample to Public Analyst, he stated in para 6 that he received the report of the Public Analyst (R. No. 18986 dt. 16-9-1972), as per Rule 7(3) of the Act and that by that report, it was found that the sample No. 2 contained a non-permitted coaltar die, viz., Orange II and is adulterated. At the bottom of the complaint in para 8 it has been stated that in this connection the documentary and oral evidence relied upon were as follows : "(1) Kolhapur Municipal Council Resolution No. 662/- 13-12-1972. (2) Receipt of Rs. 3.60 dated 18-7-72 for Suttar feni. (3) Notice of the Complaint and intimation No. 52 dated 18-7-72. (4) Report No. 18986 dated 16-9-72 of the Public Analyst, Poona. (5) A sealed bottle of Suttar Feni. (2) Receipt of Rs. 3.60 dated 18-7-72 for Suttar feni. (3) Notice of the Complaint and intimation No. 52 dated 18-7-72. (4) Report No. 18986 dated 16-9-72 of the Public Analyst, Poona. (5) A sealed bottle of Suttar Feni. (6) Panchanama." It appears that after the preliminary hearing on the 26th September, 1973 the Judicial Magistrate has framed a charge as follows : "That you on or about the 18th day of July 1972 at about 10 a.m. at Kolhapur were found in possession of Suttar Feni kept for sale in your shop by name Bombay Farsana Kendra and which was found adulterated and thereby committed an offence punishable under section 16(1)(a) of the P.F.A. Act, 1954 and within my cognizance." Thereafter evidence was led and in support of the prosecution, (P.W. 1) Parulekar and (P.W. 2) Mahadeo Ganpat Bhoje were examined. (P.W. 2) Mahadeo Ganpat Bhoje is a peon serving in the Municipal Corporation, who had accompanied the Assistant Health Officer and the complainant Parulekar on 18-7-72 when the samples were taken from the accused. The defence examined one witness by name Balwant Ramchandra Gaikwad and after the entire evidence was recorded, arguments were heard. The learned Judicial Magistrate disposed of the case as per the order mentioned hereinabove. One of the contentions seriously raised on behalf of the accused was that there was no legal or valid sanction obtained by the prosecution to prosecute the accused. As per section 29(1) of the Act, "no prosecution for an offence under this Act shall be instituted except by, Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority......." It was also urged that Resolution No. 662 of the Kolhapur Municipal Council dated 13-12 1972 was not a resolution authorised the Food Inspector Parulekar to file a complaint. It was also contended that there was nothing on record to show that the resolution was passed in a General Body of Kolhapur Municipal Council; that the resolution, which is marked (Ex. 15) did not bear any seal of the Kolhapur Municipal Council. It was further contended that the alleged resolution was not passed by the Kolhapur Municipal Council, after applying mind to the facts of the case. 15) did not bear any seal of the Kolhapur Municipal Council. It was further contended that the alleged resolution was not passed by the Kolhapur Municipal Council, after applying mind to the facts of the case. It was further contended before the lower Court that there was no proper sanction and the Court could not have take cognizance of the matter and hence there was no legal and valid trial. The learned Judicial Magistrate, First class, Kolhapur, considering the various contentions raised before him regarding the taking of cognizance of the case and the legality or validity of the prosecution and applying the tests laid down by the Supreme Court in (Babulal Hargovind v. State of Gujarat)1, A.I.R. 1971 S.C. 1277 gave a finding that there was no evidence to show that Food Inspector Parulekar was given any written consent to file a complaint against this accused. He further held that the complainant was not authorised properly to file the complaint. On these findings he came to the conclusion that the provisions under section 20(1) of the Prevention of Food Adulteration Act have not been complied with. He further held that as per those provisions, which provisions were mandatory, no prosecution for an offence under the Act shall be instituted by persons authorised mentioned therein. The learned Judicial Magistrate, relying upon (Chaturbhai v. State)2, 1967 All.L.J. 177 held that the provisions of section 20 of the Prevention of Food Adulteration Act being mandatory, the Court could not take cognizance of the offence and the proceedings were neither legal nor valid. The learned Judicial Magistrate further relied upon a Full Bench decision of the Kerala High Court in (State of Kerala v. V.O. Enadeen)3, 1971 Ker. L.T. 19(F.B.) wherein it has been observed as under : "If the complainant was not a person authorised to institute prosecution under section 20(1) of the Act, the Magistrate had no jurisdiction to take cognizance of the case. He could no more acquit than he could convict although the Magistrate called it an acquittal. What he actually did was to discharge the accused from the case and not to acquit him". Finally, the learned Magistrate held that the non-compliance of section 20 would result into the trial without jurisdiction and as such he could not decide the case and he had no alternative but to quash the proceeding and to release the accused. What he actually did was to discharge the accused from the case and not to acquit him". Finally, the learned Magistrate held that the non-compliance of section 20 would result into the trial without jurisdiction and as such he could not decide the case and he had no alternative but to quash the proceeding and to release the accused. He has made it clear by his judgment and order that he is not deciding the case on merits. Having come to the conclusion that he had no jurisdiction to take cognizance of the case, he quashed the proceedings and released the accused. Against this judgment and order, as mentioned above, the appeals were filed, both by the State as well as the original complainant. Mr. Heble, who appears on behalf of the appellant---the complainant, submitted before me that the learned judicial Magistrate, First Class, Kolhapur has come to the conclusion that the complainant was not authorised by name to file the complaint by the Kolhapur Municipal Council Resolution; he submitted that this in too technical a view taken by the lower Court and on this technical aspect, the order of the learned Magistrate quashing the proceedings and releasing the accused after charge having been framed, evidence on both sides having been completed and arguments having been heard, in an incompetent order. He submitted that the lower Court was in error in holding that the prosecution of the accused and the complaint by the complainant Food Inspector Parulekar is unauthorised and without jurisdiction under the provisions of the old Criminal Procedure Code, section 254 once a charge is framed, the Magistrate had to follow the procedure laid down under section 258 and the Magistrate having framed the charge, he could not revise his earlier decision of framing the charge and come to the conclusion that the charge was wrongly framed. Under section 435 of the old Code of Criminal Procedure, he had the option to refer the matter to the higher Court for quashing the charge framed by him, but once he having framed the charge, he could not quash it. Mr. Heble submitted that the effect of the learned Magistrate, though it is not a finding of not guilty on merits, it amounts to an order of acquittal and to that extent it is not in consonance with the provisions of section 258 of the Criminal Procedure Code. Mr. Heble submitted that the effect of the learned Magistrate, though it is not a finding of not guilty on merits, it amounts to an order of acquittal and to that extent it is not in consonance with the provisions of section 258 of the Criminal Procedure Code. In connection with the provisions of section 20(1) of the Food Adulteration Act, Mr. Heble submitted that the prosecution in the present case falls under section 20(1), namely, that the prosecution is by the Municipal Council of Kolhapur. Referring to the resolution sanctioning the prosecution, which is on P. 28, of the appeal paper book, he submitted that the resolution produced before the Court bears the signature of the President, Kolhapur Municipal Council and the reference to the Chief Officer, Health Department and "further action may be taken as per the resolution "does not mean that the Chief Officer only was authorised to prosecution the served persons mentioned in the Resolution. According to him, it is the Council itself that sanctioned the prosecution and directed to file the prosecution. In the alternative, he submitted that this is a prosecution with the consent of the Municipal Council, carried out by its officer and this is not a prosecution by any person authorised by the Council to prosecute as contemplated in the subsequent portion of section 20. According to Mr. Heble, therefore, it makes no difference when the name of the person authorised to complaint or prosecute does not appear in the resolution. He further contended that through the complaint at P. 11, is by the complainant Parulekar, it is filed in the name of the Food Inspector because he has been described as a Food Inspector of the Municipal Council. Therefore, it is submitted by him that even if instead of Parulekar, anybody also being the officer of the Municipal Council, were to file a complaint if would be a valid complaint filed by the Council or with the consent of the Council. Referring to Babulal Hargovind v. State of Gujarat, he stated that it has been held in that decision that the Corporation in either view is not fettered to empower the Medical Officer of Health to give his written consent in appropriate Cases to institute prosecutions under the Act. It is not necessary under section 20(1) that the complaint should be in the name of the Corporation. It is not necessary under section 20(1) that the complaint should be in the name of the Corporation. He submitted that on an analogy of the decision in this case, a Chief Officer, who is referred to in the resolution only to take action cannot be said to have been a person named who can take the action. The complainant is the Food Inspector, who is concerned with the case and in his complaint, he relies upon the documentary evidence of the Resolution. Mr. Heble relies upon section 9 of the Prevention of Food Adulteration Act as the complainant was appointed as Food Inspector as per the provisions of section 9. Therefore, in his capacity as the Food Inspector, he files a complaint. But, the basis of the prosecution or the authority is the resolution Mr. Heble drew my attention to (State of Bombay v. Purshottam Kanaiyalal)4, A.I.R. 1961 S.C. 81 and relied upon certain observations in para 9 and para 13. In para 9 it has been observed as follows :--- "We may at the outset, point out that we entirely agree with the learned Judges of the high Court in their view that on the terms of section 20(1) a prosecution could be instituted with the written consent not merely of the State Government but of a local authority or a person authorised in this behalf by the State Government or a local authority. In our opinion, on the language of the sub-section no other construction appears possible". He also pressed into service the following observations in para 13 of the report, viz. "Turning next to the other class, the relevant words are no prosecution........shall be instituted except.......with the written consent of ........Here the emphasis is on the consent to the filing of the prosecution, not to the person filling it. The preliminary examination of the facts to ascertain the desirability and propriety of the prosecution is in this last case, the responsibility of the person or authority giving the written consent not of the person who figures as the complainant. The preliminary examination of the facts to ascertain the desirability and propriety of the prosecution is in this last case, the responsibility of the person or authority giving the written consent not of the person who figures as the complainant. The two classes are distinct and the employment of different phraseology to designate the two types of devolution of authority constitutes an indication that in the second class of cases where prosecutions are filed on the basis of written consents granted by the competent person or authority, the specification of the name of the complainant is not a statutory requirement the consent being to a specified prosecution. We, therefore, consider that the prosecution in the present case was instituted on a complaint which fulfilled the requirements of section 20(1) of the Act". He submitted that this decision has been referred to and followed in Babulal Hargovind v. State of Gujarat. Mr. Heble submitted that the ratio of these two decisions is (1) the authority competent to give sanction is required to give written sanction. (2) The sanction for the institution of prosecution has to be for the specific objects and for the specified offender. (3) The sanction is not required to name the person who can lodge the complaint and (4) the sanction required under the Act should be by the authority after application of mind. All these requirements are complied with in the present case and, therefore, it could not be said that there was no valid sanction. Mr. Naik appearing for the accused-respondent submitted that the purported resolution on which the prosecution relied is dated 13th December, 1972; that it is an admitted fact that on 15th December, 1972 the Municipal Council of Kolhapur was dissolved and from 15th December, 1972, the Municipal Corporation of Kolhapur had come into being; that on 4th March is the date of the complaint and on 8th March, 1973 when the complaint was filed in the Court, neither the Municipal Council nor the Chief Officer (Health) were in existence; that on 15th December, 1972 an Administrator was appointed, who took over the charges. Mr. Naik also drew my attention to the evidence of prosecution witness, viz., Parulekar, the complainant, who in examination-in-chief in para 3 has deposed : "Therefore, I received the report of the Public Analyst dated 16th September, 1972. Mr. Naik also drew my attention to the evidence of prosecution witness, viz., Parulekar, the complainant, who in examination-in-chief in para 3 has deposed : "Therefore, I received the report of the Public Analyst dated 16th September, 1972. The report shows that the sample contained a non-permitted coal tar dye orange second and is adulterated. Thereafter I obtained the sanction to prosecute the accused. I produced the resolution No. 662 dated 13-12-72 by which the President of Kolhapur Municipal Council has given sanction against this accused and others. The said letter bears the signature of Smt. Karnik, whose signature I identify. Thereafter I filed the complaint in the Court". In the cross-examination on p. 19 of the appeal paper book, para 6, this witness has stated as follows : "The Kolhapur Municipal Corporation was formed on 15th December, 1972. The sanction to prosecute this accused has been given by the General Body of the Kolhapur Municipal Council. I do not know as to whether the meeting of the General Body was going on for one and one-half hours and that more 500 resolutions were passed in that meeting. There is no seal of the Kolhapur Municipal Council on the resolution by which the sanction to prosecute this accused was given. It is not true I have not obtained a legal and valid sanction to prosecute this accused. ....................It is not true that the Municipal Council has mechanically granted the sanction to prosecute this accused and that the Municipal Council has not applied its mind". Mr. Naik submitted that the resolution did not bear any seal nor was it minuted on the minutes approved by the subsequent meeting of the Council. Mr. Naik submitted that as the Municipal Council was dissolved from 15th December, 1972 and the Municipal Corporation came into existence from 15th December, 1972 which is an admitted fact, it appears that on 13th December, 1972 the Municipal Council purported to pass a number of resolutions, one of them being the resolution relied upon by the Prosecution and those resolutions were mechanically passed, without applying any mind. As Mr. Naik raised this point, Mr. As Mr. Naik raised this point, Mr. Heble asked for the adjournment to call for the records of the Municipal Council and to see whether a large number of resolutions were passed at one and the same meeting on 13th December, 1972 and whether the resolution bore any seal of the Municipal Council or was properly minuted and signed by the President, after the approval of the Members of the Municipal Council. Mr. Naik, however, opposed the application on the ground that the appeal should be disposed of on the records which were available and on the records already existing, the matter could be disposed of without any further adjournment or looking into the original records of the Council. As the matter was of some importance, I allowed the application of Mr. Heble and granted adjournment. This adjournment was granted on the 8th April, 1976. The matter was, however, heard again on 22nd June, 1976. Mr. Heble pointed out that the Maharashtra Municipalities Act, 1965, Chapter VI refers to Conduct of Business. Under the heading "Meetings" section 81(12) reads as follows : "81. The following provisions shall be observed with respect to the meetings of Council : (12) Minutes containing the names of the Councillors and of the Government Officers, if any, present under the provisions of Clause (17) and of the proceedings at each meeting shall be kept in Marathi, Hindi or English as the Council may determine, in a book to be maintained for this purpose. Except when votes are recorded by ballot, the names of the Councillors voting for or against any proposal or motion shall be recorded in the minute book. The minutes shall be signed, as soon as practicable, by the presiding authority of such meeting and shall at all reasonable times be open to inspection by any inhabitant of the Municipal area. Such minutes shall be placed before the next meeting of the Council and shall, after confirmation by the meeting, be signed by the presiding authority of such meeting". Mr. Heble submitted that it is true that ordinarily the minutes are required to be confirmed in the subsequent meeting and after the confirmation by the General Body, they are to be signed by the President. Mr. Heble submitted that it is true that ordinarily the minutes are required to be confirmed in the subsequent meeting and after the confirmation by the General Body, they are to be signed by the President. But in the present case, on 13th December, 1972 when the meeting of the Council took place, several resolutions were passed and one of them being Council resolution No. 662 dated 13th December, 1972, which is reproduced at (Ex. 15) on p. 28, he submitted that he was unable to say as to when the document (Ex. 15) was prepared or by whom and as to when it was placed before the President for her signature. Mr. Heble was not in a position to say as to when this document was signed by the President. He admitted that if the document refers to the resolution dated 13th December, 1972, it must have been incorporated in this document, i.e., (Ex. 15) after 13th December, 1972 but when he could not State. According to him, this document must have been prepared on or before 15th December, 1972 while the President continued as the President of the Municipal Council. The last submission he made is on the presumption to be drawn under section 114 of the Evidence Act, viz., official acts are presumed to have taken place properly. He further submitted that the Resolution in question was part of all the resolutions passed by the Municipal Council which were to be incorporated in the Minute Book of the Council. He admitted that when the Minute Book was produced, the Minutes were written but it did not bear the signature of the President. He had to admit that he was not in a position to say when the minutes were prepared. According to him, the provisions of section 81(12) were directory and not mandatory and relied upon (Craigies on Statute Law, pp. 249-250) in support of his contention. He had to concede that the next meeting of the Council could not be held because the Council was suspended by the Corporation and, therefore, by the act of State the minutes could not be got confirmed, as no more meetings could be held. Mr. Heble, however, submitted that the interpretation of the lower Court of Ex. He had to concede that the next meeting of the Council could not be held because the Council was suspended by the Corporation and, therefore, by the act of State the minutes could not be got confirmed, as no more meetings could be held. Mr. Heble, however, submitted that the interpretation of the lower Court of Ex. 15, the last part, where there is an endorsement to the effect, viz., "Chief Officer (Health Dept.), further action may be taken as per resolution" does not amount to nomination of the Chief Officer, who could take action but it is in the usual course of business all acts of the Council are to be carried by its officers and the President had directed one of its officers only to carry out the directions in the resolution and, therefore, it cannot be said that the Chief Officer was a person named within the provisions of section 20 of the said Act, who could have either sanctioned the prosecution or instituted the proceedings. Mr. Heble submitted that this interpretation put by the lower Court is erroneous. He therefore relied upon the observations in those very judgments, viz., in State of Bombay v. Purshottam Kanaiyalal and Babulal Hargovindas v. State of Gujarat which I have already referred to . I am unable to accept the submissions made by Mr. Heble. It is true that under the old provisions to section 254 and 258 of the Code of Criminal Procedure once the charge having been framed, the Magistrate has to finally determine the case. But that does not mean that even before the hearing is completed, it is brought to the notice of the learned Magistrate that there is no proper or valid sanction or that the sanction relied upon by the prosecution on the basis of which the charge is framed was not proper can be taken up by the accused before the trial is over. The learned Magistrate has explained the whole situation and in my opinion, rightly followed the decisions of the Supreme Court. The Food Inspector was not the person authorised to file a sanction or a person named to file the complaint. The learned Magistrate has explained the whole situation and in my opinion, rightly followed the decisions of the Supreme Court. The Food Inspector was not the person authorised to file a sanction or a person named to file the complaint. The resolutions relied upon no doubt might have been passed in the meeting of 13th December, 1972 along with several other resolutions but that resolution has not been minuted, confirmed and signed by the President is an admitted fact, which cannot be said to be forming the basis as a sanction to prosecute. In any event, it is an admitted fact that what has been relied upon as a sanction by the prosecution at Ex. 15, which is on a separate piece of paper and on which there is no seal of the Municipal Council, but merely bears the signatures of the President and in view of the admissions made by Mr. Heble that he was unable to say as to when the same was signed, I am unable to draw an inference which Mr. Heble wants me to draw under section 114 of the Evidence Act that this must have been done prior to 15-12-1972 after which date the President ceased to be the President of the Municipal Council as the Corporation had come in the place of the Municipal Council. Mr. Heble even after taking time for bringing the Minute Book in which the Resolutions are generally minuted has admitted that in the minute book, there is no signature of the President on the date 13-12-1972 when several resolutions were passed at one and the same meeting and this was one of them. Mr. Heble further stated that there is nothing from the book itself to show as to when these minutes were written in the book. He further admitted that these resolutions which are incorporated in the minute are not bearing any seal of the Council nor do they bear any signature of the President. He further admitted that as the Municipal Council was suspended and substituted by the Municipal Corporation from 15-12-1972 there was no occasion of the Municipal Council to confirm this resolution and the President to sign the minutes of the meeting on 13-12-1972. According to Mr. Heble the reference to the Chief Officer is of no consequence. He further admitted that as the Municipal Council was suspended and substituted by the Municipal Corporation from 15-12-1972 there was no occasion of the Municipal Council to confirm this resolution and the President to sign the minutes of the meeting on 13-12-1972. According to Mr. Heble the reference to the Chief Officer is of no consequence. In my opinion, if the President had signed the Resolution and the Resolution itself was the sanction then there was no necessity for an endorsement by the President to the Chief Officer. In the facts of this case, I am not satisfied that the resolution has been properly proved nor satisfied that by the resolution the Municipal Council itself sanctioned the prosecutions and there was no person mentioned specifically, who was to take action for the prosecution. The learned Magistrate has carefully considered all these aspects and I am entirely in agreement with the finding of the learned Magistrate that the prosecution has not established properly the sanction as required under section 20 of the Food Adulteration Act having been given to prosecute the accused. In this view of the matter, the result is that the judgment and order requires to be confirmed and cannot be set aside. But it can be made clear, though, in my opinion the learned Magistrate has made it abundantly clear, that the portion whereby he has already concluded after relying upon the Kerala case that he was not deciding the matter on merits but as there was no sanction properly proved, he had no jurisdiction to take cognizance of the complaint. It is well settled that if the sanction is condition precedent and if no sanction is given or sanction is bad, the legal consequence is merely as is the charge has never been framed. If the charge is not presumed to have been framed, than the accused is only entitled to be discharged and could never to be acquitted. In the result, I make it clear that the order of the learned Magistrate amounts to a mere discharge and not an acquittal, though this has been made very clear by the learned Magistrate by himself. The matter has not been disposed of on merits and the prosecuting agency is entitled to proceed against the accused if proper and valid sanction to prosecute him can be obtained. The matter has not been disposed of on merits and the prosecuting agency is entitled to proceed against the accused if proper and valid sanction to prosecute him can be obtained. The result, therefore, is that the appeals by the State as well as by the Complainant, both in the case of Suttar Feni and Badami Halva fail and are dismissed. The orders of the lower Court are confirmed. -----